Acumen Fights Back

In a legal case
apparently designed by a
U.S. law firm to place roadblocks in the way of the fast-growing legal services
outsourcing industry in India,
the Indian lawyers are fighting back.

Newman
McIntosh & Hennessy (“NMH”), a U.S.
law firm worried about off-shoring of legal work, sued India-based Acumen Legal
Services, along with U.S. President George Bush, in the Washington D.C. federal court. NMH is suing on the basis of
speculation, unsupported by even a single example, that the government is intercepting all or most of
the data sent by U.S.
lawyers to foreign legal outsourcing providers, as part of an anti-terrorism
campaign.Seizing on that speculation as
an excuse, NMH seeks a court order against “all United States-based attorneys”
who outsource legal work to India and "all foreign legal outsourcing providers."

Thanks to a motion to
dismiss and supporting legal brief drafted entirely in Mysore, India,
the NMH law firm is getting an unexpected taste of the kind of high-quality
legal work that Indian lawyers can provide, even in the Washington D.C. federal
court.In their brief on the motion to
dismiss, the legal team for Acumen points out the following:

NMH’s requested declaratory and injunctive relief, in
addition to having no legal or factual justification, would reach far beyond
NMH’s obviously intended target, namely, low-cost foreign legal outsourcing
companies, which NMH apparently perceives as competition. The requested relief could have a substantial
adverse effect on the operations of all
law firms that have foreign offices, and all U.S. corporations that need to use foreign counsel to transact business abroad.NMH’s requested ruling that any foreign electronic transmission of data
between clients and attorneys, or between attorneys, constitutes a waiver of
constitutional rights and discovery privileges, would amount to an untenable
and unwarranted interference with global commerce.

Moreover, NMH’s request for an order requiring all
attorneys in the United States, including in-house counsel, (a) to search for
every instance in which they ever transmitted any kind of data to any foreign
national, and (b) to send a notification regarding the same in every case,
presumably to the owner of the data, would amount to one of the most onerous
and unjustified burdens ever imposed by any court in a civil proceeding.

In addition, by requesting the Court to issue
declarations answering seven hypothetical legal questions, purportedly because
the NMH law firm “need[s] guidance,” wants “to gain certainty,” and “must
understand” various points of law to help the firm “in an increasingly
globalized legal services environment,” NMH seeks relief that is impermissible
under well-established principles governing declaratory judgments.The NMH lawyers, in essence, are seeking to
outsource their legal research tasks to this Court, and secondarily to Acumen,
President Bush and their respective counsel.

NMH’s Complaint is extraordinary, not only for what
it contains, but even more so for what it does not.Nowhere in the Complaint does NMH allege:

any example of
an actual or impending injury to itself or to anyone;

any actual or
impending violation of Fourth Amendment rights;

any instance of
an actual or impending waiver of Fourth Amendment rights;

any basis for
finding a waiver of Fourth Amendment rights, given that NMH does not allege
that any Fourth Amendment rights are being violated by the supposed government
interception of data;

any instance of
an actual or impending breach or waiver of attorney-client privilege or
confidentiality;

any actual or
impending example of government interception of data;

any actual or
impending instance of transmission of data to any foreign nationals by anyone;

any basis for
NMH’s speculation that electronic transmissions to foreign nationals are more
likely to fall into the hands of the government than are domestic
transmissions, which are subject to possible domestic surveillance by law
enforcement agencies;

any examples of
actual or impending conduct within the District of Columbia by any of the parties;

any relationship
or interaction of any kind among any identified persons or entities in the District of Columbia or anywhere else;

any monetary
dispute or requested monetary relief that could support the “amount in
controversy” requirement for NMH’s assertion of diversity jurisdiction;

any legal or
factual basis upon which this court could grant the sweeping declaratory and
injunctive relief sought against millions of non-parties, such as every lawyer
in the United States, and every foreign legal outsourcing company;

any reason why
NMH cannot avoid the speculative dangers it alleges by simply (a) continuing to
refrain from using foreign legal outsourcing providers, and (b) seeking a
protective order in any litigation where NMH believes that its clients’ data
may be sent by adversaries to such providers;

any legal or
factual basis upon which the court could require the Executive Branch to
“prevent the waiver of Fourth Amendment rights” or “safeguard the
attorney-client privilege and client communications and client confidences and
secrets;” or

SDD Global was hired to work on the defense, and I'm very impressed with the team of Indian lawyers and paralegals who researched and drafted the motion. In fact, the product was so good that the local D.C. attorney, a former partner at Bingham and veteran of Morgan Lewis & Bockius and Skadden Arps, and a Harlan Fiske Stone Scholar at Columbia Law School (which means he is smarter than me, since I did not win that award when I was at Columbia, maybe because I was too busy wasting time in New York nightclubs) did not see a need to make any significant changes before filing.

Stay tuned for further developments in the case.

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